If Not Marriage for All, How About Marriage for None?

The simplicity and brevity of same-sex marriage bans like prop 8 leave a lot of room to look at alternatives. I can’t help but see something like this and think, Okay, I can work with that.

Only marriage between a man and a woman is valid and recognized in California.
–Text of Proposition 8

We’ve still got the equal protection clause, and all the reasoning that brought the CA Supreme Court to make its original ruling around marriage. We’ve still got the freedom of religion. This creates an apparent contradiction where a court might have to decide which clause supersedes the others, however, the answer that recognizes all of these clauses seems obvious to me:

If only marriage between a man and a woman is valid and recognized, then to ensure equal protection, the state must cease to provide rights and privileges to an institution that only allows some to participate – in other words, civil unions for all, marriage for none.

It’s a rather simple argument. Prop 8 and similar laws passed elsewhere never dictate that the state must provide special rights to those that are married or that those who are married must be given special treatment. This happened briefly in Oregon back in 2004:

But the [county] commissioners… simply made the only choice they could, they say. Had they granted licenses to gays, they would have violated a state statute defining marriage as the union of a man and a woman; had they continued to grant licenses to straight couples but refused to grant them to gays, they say, they would have been violating the State Constitution’s protection of equal rights. But if no one got licenses — at least until the state courts settle the issue, probably within a couple of months — no one could claim discrimination.

–NY Times arcile from 2004

Marriage is often discussed as a religious institution, so it seems to me that the government should never have been in the business of regulating a religious institution in the first place. When my church performs a marriage and your church performs another marriage, then the government provides a series of rights and privileges for your church’s marriages but not for my church’s marriages, that seems like it’s a violation of both the establishment clause and my free exercise of religion.

If the government recognized marriage as a religious institution (albeit, one between a man and a woman as dictated by these laws) that they have no power over, and shifts to providing only civil unions, then we would achieve marriage equality in a way that even the legalization of same-sex marriage could not.

In addition to everyone’s marriages suddenly having the same amount of associated rights (zero), getting rid of the separate and unequal institution ties queer and straight people’s rights together, and conservatives would have to choose to either grant rights to queers or deny rights to straights.

If millions of heterosexuals could no longer rely on special rights from marriage and had civil unions as their only option, then I predict every state in the union and the federal government would scramble to quickly pass legislation recognizing civil unions — something that even California and Massachusetts same-sex marriages do not currently get.

When I’ve proposed this idea before, I’ve been accused of having a “I’m taking my ball and going home” mentality. Other activists have complained that they want a state recognized marriage and aren’t willing to settle for civil unions or take rights away from others. What they usually fail to recognize, though, is that same-sex marriage fails to provide equal rights for all families as well. There are many families that are headed neither by opposite sex couples nor same sex couples, and will continue to be barred the rights associated with marriage even when same-sex couples can get married.

Living with my two partners Alethia and Ronan, my family doesn’t meet the “couple” standard. Personally, I see this approach as the best chance I have for getting the state to recognize my family and all the others like it. Not even marriage equality organizations are willing to fight for my family’s right to have our relationships recognized. Virtually no one supports the right of marriage between co-parenting siblings, a single mom and her parents, co-habitating best friends who don’t have a sexual relationship together, polyamorous triads, quads, and so on. But in some of these cases the argument for civil unions has had traction.

In the meantime, is there any real reason that our government shouldn’t abandon marriage as the religious institution that it is? And with laws like Prop 8 now enshrined in so many state constitutions, to do so seems like the fastest route to achieve marriage equality.

You can marry, but you can’t divorce

I was reading over an FAQ for the practicalities of getting married in California and stumbled upon a disturbing piece of information. It’s widely reported that the recent marriage decision in California does not create a residency requirement to get married. That means that someone could travel to California, get married, and go home. However, California DOES have a residency requirement for divorce. That’s where the trouble is.

If you’re home state doesn’t recognize your new marriage, then chances are they won’t allow you to get divorced there. Currently, the only other states you can be garunteed the right to divorce are Massachusetts (where same-sex marriage is also legal) and New York (which does not perform same-sex marriages but will recognize them). According to the FAQ, “States with civil unions or comprehensive domestic partnerships, like Connecticut, New Hampshire, New Jersey, Oregon, and Vermont, also may allow married same-sex couples to divorce, but each of those states [including Massachusetts and New York] has a one-year residency requirement.”

So what happens if you don’t live in one of those states and you and you’re partner are ready to leave your California-made marriage? Without moving to one of those states and waiting a year to gain residency — YOU CAN”T GET DIVORCED.

This has some obvious and serious legal repurcussions. And recognizing that abuse does indeed exist in queer communities, one can imagine the difficulties of not being allowed to divorce your abusive partner. Not being allowed to dissalow your abusive partner hospital visitation, medical power of attorney, or other such benefits of marriage.

Hopefully this is an oversight. Although, there certainly are those in this country who would like to see the right to divorce restricted. I sincerely hope that after all this work for marital equality, after finally getting the right to marry declared a universal right, that we won’t have to fight a similar battle for the right to divorce.

Big News if You Want to Get Married or Get Sex Reassignment Surgery

This morning I awoke to two major pieces of news, receiving multiple email announcements about each. The California Supreme Court ruled that the ban on same-sex marriage was unconstitutional. And the Ontario Heath Minister announced that Ontario’s provincial health care will resume covering Sex Reassignment Surgery. I guess that means if you want to get married you can go to California, and if you want SRS you can marry a Canadian.

Both of these are tremendous and huge stories that indicate a major shift in our rights, but I couldn’t help noticing a difference in who was talking about which one.

My inbox was full of emails discussing the marriage case from PFLAG, the Family Equality Council, COLAGE, Lambda Legal, the Stonewall Democrats, Basic Rights Oregon, and two from the National Gay and Lesbian Task Force.

And I had a few emails notifying me of Canada’s shift in policy from a friend, another activist, another friend.

Why weren’t any of the organizations commenting on Canada’s news? I went to my favorite queer blog, The Bilerico Project, and saw half a dozen posts on California’s Supreme Court ruling, but none on the SRS coverage in Canada. As a regular reader, I shot the editor off a email in case they hadn’t heard, and while promising to cover it tomorrow, I was told that no one’s going to talk about anything but California’s marriage ruling today.

That made explicit that which all these organizational press releases only implied, SRS is not as big as marriage.

With all the talk about trans people being “less acceptable” and “behind” the gay and lesbian movement, you’d think that this would be bigger news. I mean, the GOVERNMENT IS PAYING FOR SEX REASSIGNMENT SURGERY! Doesn’t that completely blow out of the water the assumption that trans people are too freaky to be included in a non-discrimination bill? That’s gotta be at least as big as one more population being granted marriage rights in one more state.

Granted, it is Canada, so I’d expect the news to cover it less in the United States, but still, do you remember how big a deal it was (for US folks) when Canada legalized marriage? The reality is that all our LGBT organizations, even the ones making big strides in trans-inclusiveness, even the ones I wholeheartedly support, are just not tapped into trans news, don’t make trans news a priority, or perhaps just don’t think trans news is as big as gay and lesbian news. It’s a result of having the T added on at the end of the acronym. The organizations may support trans rights, but for the most part they weren’t founded on that idea.

It’s the legacy of being an institutional afterthought.

What Relationship Rights Could Look Like

When I criticize the mainstream gay and lesbian marriage movement, I’m often asked, “Well, what should we do?” I’ve given it a lot of thought, and it’s clear to me that an honest answer that would truly support the rights of everyone is not going to seem all that realistic. But I really think it’s important to question what it truly means for something to be “realistic.” Just 5-10 years ago, same-sex marriage was not realistic except for some very specific cases – now it’s realistic enough to be the number one issue for most LGBTQ organizations.

While it’s important to look to realistic options and choose tactics that we believe have a good chance of success, we must also question how the criteria of “realistic-ness” becomes a circular logic. If the amount of money, staff time, lobbyists, organizers, volunteer energy, phone banks, letter writing campaigns, and discussion that has gone into same-sex marriage were to be used on another idea, it would quickly become realistic. So what ends up happening is that no organization will support a broader push for equality because it’s not realistic, but it’s not realistic and never will be because no organization will support it.

If we take off those limitations for a moment and begin to wonder what a truly inclusive relationship recognition system would look like, we see a very different approach.

Let’s start by asking, what is it in marriage that people want?  People will often discuss the 1049 legal rights and benefits that the federal government gives to married couples.  Marriage, as a legal institution, allows people to be seen as a different legal entity and be treated by the law in an entirely different manner.  But people don’t always want all of that.  Some of these “benefits” can create significant problems for people.

Marriage is based upon a sexual relationship, creating an automatic melding of property, shared financial responsibility, shared parental rights and duties, and shared legal responsibility for each other and dependants in matters of medical emergency, death, and the court system.  It’s an all-or-nothing deal where in order to get one set of rights you need to take on all of them.  And all of that is based on who you have sex with.

Why do we need to make the assumption that the person you are having sex with is going to be the best possible co-parent for your child?  Maybe the best co-parent available is your sibling, parent, or best friend.  But you can’t marry your sibling or parent because that assumes you’d be having sex with them, and we look down on that kind of thing.  And maybe your best friend is great with kids but horrible with money and you don’t want to be financially responsible for them.  Why shouldn’t you be able to pick and chose who is in what parts of your life in ways that make sense to you.

There are all kinds of reasons why people would want to marry and they’re not going to all be true in each case.  Plenty of queer college students who’s rich parents disown them when they came out look to getting married in order to be considered “independent” for financial aid.   Senior citizens might choose not to get married so that they can remain eligible for certain benefits.

Then there’s issues like marriage “promotion” within welfare, which gives women welfare bonuses if they are married. Of course this means that women in abusive relationships now face one more barrier to leaving their abusers.   Especially when lack of financial independence can make leaving difficult, this marriage “benefit” only serves to perpetuate domestic violence and a conservative agenda that wants to see each woman safely secluded in the private sphere and tied down to her man.

With all these different issues, it doesn’t make sense to have such a simplistic all-or-nothing system.  What we need to do is start over again.  The original legal institution of marriage was based upon a property exchange and, while it’s change a lot, it is still primarily based upon property rights.  This isn’t the kind of thing you can wordsmith into equity.

So how do we begin to do this?  Here’s my radical idea: ban straight marriage.

This would fit into modern politics fairly easily.  When the state of Oregon began to question the legality of excluding same-sex couples from marriage based on the strong equal protection clause in our constitution, two counties took action.  Multnomah county started giving marriage licenses to same sex couples.  Benton county stopped giving out marriage  licenses  all together.  Only a little bit later a court ordered them to resume.

But what would have happened if they didn’t?  What would happen if statewide or nationwide straight people were barred from obtaining rights and benefits tied to relationship recognition?  The same thing that always happens when privileged populations are denied essential rights, they’d create a new system to get those rights as soon as possible.

They’d start with the patchwork system that queers have been using forever.  A power of attorney document here, a re-written will there, a few individual contracts, and of course, affidavits indicating intent.  And when those wouldn’t cover some of the most necessary rights, they’d sue.  And they’d win.  Because the courts seem to be fine denying essential rights to queers, but they’d be horrified at the lack of rights for straight people.

Certainly all this would be messy, and there would be no guarantee that there wouldn’t be inequities in the resulting system.  But it would be a system based upon the stated needs of individual people in relationships instead of presumed government interests in encouraging straight coupling.  Additionally, as queers have been stuck in the quagmire of DIY relationship recognition for decades, it would make perfect sense for us and our organizations to lead the fight.

Ultimately, a DIY pick-and-choose system based upon individuals needs would allow far greater inclusion.  And while it might not be too likely that we’ll ban straight marriage anytime soon, perhaps we can still look to this kind of relationship recognition system in our organizing now.  Such a perspective would include a new look at marriage, seeing the diversity of relationship types people enter into, valuing people’s right to not get married without being denied benefits, and criticizing any governmental restrictions on what counts or does not count as a relationship.  Because ultimately, this is about affirming individuals’ own declarations about the relationships in their lives.

Domestic Partnerships in Oregon

There have been celebrations taking place all over Oregon to mark the passage of SB 2 (trans-inclusive non-discrimination) and HB 2007 (domestic partnerships for same-sex partners only), while the right wing prepares to collect the necessary signatures to overturn the bills. I’m overjoyed at the implications of a statewide non-discrimination bill, but I can’t help but feel ambiguous about our new domestic partnership recognition, especially as it seems to be getting a lot more attention than non-discrimination. It’s good for gays and lesbians, but it seems to leave out a lot of bisexual, transgender, polyamorous, not to mention straight members of our community.

First of all, the domestic partnerships are only for “same-sex” couples only. Why? There are a number of bi and straight “opposite-sex” couples who would rather avoid marriage — either for financial, political, or ideological reasons — why deny them the opportunity to get a domestic partnership. Especially the many straight queerspawn who do not want to be married while their parents cannot. Now they have to choose between taking marriage while their parents are relegated to a separate and unequal institution, or having no relationship recognition while their parents get a domestic partnership.

Then there’s the whole other issue of creating a new government institution that is based on people’s gender. That means that there is one more place where the rights you can have will depend on your ability to prove that you are the gender that you say you are. And that puts transpeople in a vulnerable place. If your someone can “disprove” your gender, then they could annul your domestic partnership. And while that would also end up “proving” that you’re eligible for a marriage, it very well may be too late. A transperson would just be out of luck if their partner “disproved” their gender in order to annul their domestic partnership as a tactic in a custody battle. Of course, all of these things could happen to a transperson in a marriage. But why do we have to include all of the issues of institutionalized transphobia in the relationship recognition system that we wrote?

We should remember that this bill doesn’t hurt “opposite-sex” couples and it doesn’t take away any rights from transpeople, but there’s absolutely no reason to leave them out. Want the inside scoop? It was an oversight, sort of. I and several other activists pointed this out to Basic Rights Oregon (BRO) two years ago, just before the last bill failed. We were told that this problem would be fixed next time, but aparently nobody took notes. By the time it was discovered this time around (i.e. I pointed it out, again), the bill language had been written and while the issue was given a lot more weight than two years ago, it was decided that it would take too much activism and volunteer time to convince legislators to change it. The bill isn’t hurting these populations, but once again they were all left out.

Then there’s the whole other issue of polyamorous families. It’s not too hard to see that any kind of legal relationship recognition system that recognizes poly relationships is pretty far off and not all the realistic right now. But that doesn’t in any way mean that we should simply pretend that poly families don’t exist. In fact, statements celebrating equality for all or relationship recognition rights for all while that is clearly not the case, are implicitly designed to make certain that such equality never truly occurs. Equality for poly families will continue to be politically unviable as long as political discussions about relationship rights refuse to recognize and discuss the problem.

Yet at the same time, I still went to my local celebration. Knowing how important state recognition has been to my parents, I raised my glass in a toast to their rights. But when people asked me if I was going to get a domestic partnership, I had to tell them that I am not eligible. The domestic partnership bill we passed discriminates against me in a way that very well may now be illegal, but additionally it also discriminates against me in a way that no political organization currently has the will to oppose.

And while I helped run a PAC to get pro-LGB(T?Q?) candidates elected, while I called and visited my legislators, phone banked for rallies, and while I testified in the Senate Hearing — both for non-discrimination and for the relationship recognition rights of nearly every person in that room — no one there had done the same for my relationship recognition rights. I’m sure plenty would have, but they hadn’t thought about it, they hadn’t heard it discussed as an issue, or they had no leadership or organization to show them how to do it.

So I raised my glass to victory. How bittersweet it tastes.

(Next week I’ll write about my vision of how these issues could be dealt with)